Administrative Law And Regulatory Process

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Administrative Law and Regulatory Process

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Question 1:

The goal of preventing administrative agencies from making ideological decisions is not a new one. Under the Administrative Procedure Act, a federal court in a proper challenge can strike down a regulation if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Interpreting that provision, the U.S. Court of Appeals for the District of Columbia Circuit, which hears appeals of many administrative law challenges, has found that the role of the courts is to ensure that the agencies have “genuinely engaged in reasoned decisionmaking.” A court is required to intervene if it “becomes aware, especially from a combination of danger signals, that the agency has not really taken a 'hard look' at the salient problems. (Ciocchetti 2001)” This doctrine has come to be known as the “hard-look” doctrine, and although it is technically the agency that must look hard, in practice the courts also carefully consider the administrative record to ensure that the agency has done that.

Although the doctrine is not specifically designed to prevent ideological decision making, as opposed to decision making that is arbitrary because of shortness of time or other factors, it often serves that purpose. The Supreme Court's most famous application of hard-look review occurred in a case involving a politically controversial application of the National Traffic and Motor Vehicle Safety Act of 1966.10 In 1972 the National Highway Traffic Safety Administration (NHTSA) decided to require, in addition to seat belts, some form of passive protection (air bags or automatic seat belts) for front-seat passengers. Before that decision went into effect, the Secretary of Transportation decided to suspend the requirement in 1976, but his successor disagreed, requiring that either air bags or passive seat belts be installed beginning in 1982. In 1981, however, a new Secretary of Transportation reopened the rulemaking and canceled the previous standard. It was obvious to all that different philosophies of government played a role in the decision, with the Reagan administration more skeptical of such intervention than the Carter administration.

In a review of a lawsuit challenging the Reagan administration's decision,11 the Supreme Court showed a willingness to scrutinize the particular arguments offered in favor of the change. The NHTSA had observed that manufacturers were complying by introducing passive seat belts rather than air bags, but the passive seat belts could easily be detached and thus were ineffective. The agency, however, never explained why it did not respond to this problem by mandating air bags instead. The effect of the Court's ruling, intended as a guide to how lower courts should make similar assessments, was to vacate the agency's decision. The agency would still have an opportunity to make the same decision, but it would have to provide a better explanation, for example, by showing that an air bag-only rule would be too expensive. Of course, it is not always easy for an agency to convince a court the second ...
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